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INSTRUCTIONS:
HOW TO ASK THE COURT TO APPOINT A GUARDIAN
FOR A MINOR
WHO IS NOT AN INDIAN CHILD1
Introduction
The court may appoint a guardian for an unmarried minor if all parental rights of custody have
been terminated or suspended by circumstances or prior court order.2
The court may appoint as guardian any adult whose appointment would be in the best interests of
the minor. A priority is given to an adult family member.3 If the minor is age 14 or older, the
minor may nominate his/her guardian.4
Lawyers
Before starting this process, it may help to talk to a lawyer who is familiar with guardianship
procedure. If you are unsure about whether you should hire a lawyer, it is a good idea to talk to
one about your case before you decide whether you can handle it alone. If you do not know a
lawyer, you can call or write:
Lawyer Referral Service of the Alaska Bar Association
P.O. Box 100279, Anchorage, AK 99510-0279
Phone: 272-0352 or 800-770-9999 outside Anchorage (toll free within Alaska)
Costs of the Proceedings
See page 12 for information about who has to pay the costs involved in petitioning for
appointment of a guardian for a minor.
Definitions of Some Terms Used in These Instructions5
Minor:
A minor is a person who is under 18 years of age.6
Petitioner:
The petitioner is the person who signs the petition asking the court to
appoint a guardian.
Ward:
A ward is a person for whom a guardian has been appointed. (Thus, the
“minor” is called a “ward” or “minor ward” after the judge appoints a
guardian.)
1
See definition of “Indian child” on page 3.
AS 13.26.045
3
“Adult family member” means “a person who is 18 years of age or older and who is (a) related
to the child as the child's grandparent, aunt, uncle, or sibling; or (b) the child's sibling's legal
guardian or parent.” AS 47.10.990(1).
4
AS 13.26.055
5
AS 13.26.005
6
AS 13.06.050(29)
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Probate Rule 15
Instructions for Minor Guardianship Petition (Non-Indian Child)
AS 13.26.030 - .085
2
How To File
Step 1.
Fill out the attached Petition form (PG-610).
If you are seeking guardianship of more than one child, fill out a separate petition for
each child.
Fill in the top of the form as shown in the following illustration:
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
AT City Where Court is Located
In the Matter of the Protective Proceeding of
Name of Child Who Needs a Guardian
Minor
Date of Birth: xx/xx/xx
)
)
)
)
)
)
)
)
CASE NO.
PETITION FOR APPOINTMENT OF A
GUARDIAN FOR A MINOR
(AS 13.26.045)
Print clearly, using black ink.
a.
Parent’s Rights
In paragraph 2 (about the child’s mother) and paragraph 3 (about the child’s
father), you must indicate whether the mother’s and father’s rights of custody
have been either “terminated” or “suspended by court order” or “suspended by
circumstances.”
“Terminated” means a court has entered a written order ending the person’s
parental rights concerning the child.
“Suspended by court order” means the court has suspended the parent’s right
to have custody. This might happen, for example, in a “child-in-need-of-aid”
(CINA) case in which the court gives temporary custody of the child to the
state.
“Suspended by circumstances” means that for some reason the parents are
unable to provide care and supervision for the child on a day to day basis and
perform normal parenting duties.
If “suspended by circumstances” is the reason a guardian is needed, you must
explain in paragraphs 2 and 3 what those circumstances are. You must give
enough details for the judge to understand the situation.
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b.
Indian Child
In paragraph 5, you must state whether the minor is “an Indian child as defined
by the Indian Child Welfare Act.” The Indian Child Welfare Act (ICWA) is a
federal law which establishes special procedures that must be followed
whenever the placement of an Indian child is being decided. ICWA includes
the following definitions:7
"Indian child" means any unmarried person who is under the
age of 18 and who is either (a) a member of an Indian tribe, or
(b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.
"Indian tribe" means any Indian tribe, band, nation, or other
organized group or community of Indians recognized as eligible
for the services provided to Indians by the Secretary [of the
Interior] because of their status as Indians, including any Alaska
Native village as defined in section 1602(c) of Title 43.
There are over 200 Alaska tribes, mostly Native villages. If the minor or any of
the minor’s parents or grandparents was born in a village, the minor might
qualify for tribal membership. Ask the child, the parents, and (if necessary)
other relatives about this.
If you need help determining whether a child qualifies as an "Indian child"
under ICWA, you may be able to get help from the tribe you think the child
might belong to.
The federal Bureau of Indian Affairs (BIA) publishes an updated list of the
tribes every year in the Federal Register. The list includes the name, address and
telephone number of a contact person for each tribe. You can get the list on the
BIA website: www.bia.gov . Type “List of ICWA Designates” in the white box
(a search box) in the upper right hand corner of the web page and click “GO.”
You can also call the Juneau office of the BIA and ask for assistance (1-800645-8397, press 2 for "Tribal Enrollment," then press 6 to speak to the ICWA
child welfare social worker). You will need to give them the names and dates
of birth of the child’s parents and, if possible, the child’s grandparents.
c.
Check the box at the beginning of paragraph 7 if both parents are dead. Then
check one of the two boxes below to state whether the last surviving parent left
a will that appoints a guardian for the child. If there is a will appointing a
guardian, then check one of the next two boxes explaining why the appointed
guardian is not or cannot be the guardian. The two choices are:
7
25 USC 1903
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Probate Rule 15
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(1)
The guardian has not accepted the appointment.
Alaska Statutes require a guardian appointed by will to file a written
acceptance of the appointment in the court in which the will is
probated.8 The guardian must then give notice of the acceptance to the
minor and to the person who has care of the minor as explained in the
statutes and court rule. See the PG-650 packet for more information
about this.
If there is a guardian appointed by will who has not accepted the
appointment and you want a different person appointed guardian, you
must notify the person appointed in the will that you are filing a petition
for appointment of a guardian.9 You can do this by sending the person a
letter stating the following:
Name & Address of Person
Appointed Guardian in Will
Date:
Dear
You were nominated in the will of (name of parent) to be
the guardian of (his)(her) child,
(name of child) . The
parent has died, and you have not agreed to be the guardian.
So, I am filing a petition in the Superior Court at (court
address) , asking the court to appoint
(me) or (name of
person) as guardian for this minor child. If you object to my
petition, you must notify the court in writing within 30 days.
Your Signature
Your Name (printed or typed)
Your Address
You must file a copy of this letter with the court. Attach to the court’s
copy a separate sheet of paper like the following:
Certificate of Service
Case No. (write the case number if one has been assigned)
In the Matter of the Protective Proceeding of (child’s name) ,
Minor
I certify that I mailed the original of the attached letter to
(name of person) on (date) by first class mail.
(Your Signature)
(Print your Name)
8
9
AS 13.26.035 and Probate Rule 15.1
AS 13.26.045
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Probate Rule 15
AS 13.26.030 - .085
Keep a copy of both the letter and the certificate of service for yourself.
(2)
The minor opposed the appointment made in the parent’s will.
If the minor is age 14 or older, the minor may file a written objection
with the court opposing the appointment of the person named in the
will. The objection must be filed either before or within 30 days after
the minor receives notice of the guardian’s acceptance of the
appointment. The court will then hold a hearing to decide if the person
should be the guardian. Check the second box on your petition if this is
what happened in your case.
d.
Paragraphs 8, 9, and 10 ask about other court orders or proceedings concerning
the child. If there are any court orders or court cases pending, please include
the type of case, case name, case number and location of the court, if you can.
Include any type of case that affects who has custody of the child (for example,
an adoption case) in any court.
e.
In paragraph 12, explain why the person you recommend as guardian should be
appointed as guardian.
f.
Signature.
Sign and date the Petition on page 3. You will also need to complete the
“Verification” section that follows your signature. You must do this in front of a
notary public. A court clerk can provide this notary service for you (at no
charge) when you bring the Petition to court. You must bring a photo ID with
you for the notarization.
Step 2.
Fill out the attached Child Custody Jurisdiction Affidavit (DR-150). In the affidavit, you
must provide information about the child, including all the places the child has lived for
the past five years. If you are seeking guardianship of more than one child, prepare a
separate affidavit for each child.
Fill in the top of the form as shown in the following illustration:
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
AT City Where Court is Located
In the Matter of the Protective Proceeding of
Name of Child Who Needs a Guardian
Minor
Date of Birth: xx/xx/xx
)
)
)
)
)
)
)
)
)
)
CASE NO.
CHILD CUSTODY JURISDICTION AFFIDAVIT
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AS 13.26.030 - .085
Step 3.
Fill out the attached Acceptance of Appointment (form PG-630). Fill in the top of the
form as you did on the Petition, and fill in the guardian’s name in the first paragraph.
Before signing the Acceptance, the proposed guardian must read the statute that
describes the duties of a guardian of a minor, AS 13.26.070. See page 13 .
Step 4.
Parent’s Consent (form PG-615).
If the child’s mother or father is alive and there is no court order terminating or
suspending the parent’s right to have custody of the child, then the only way a court
can appoint a guardian for the child is if the court finds that the parent’s rights of
custody have been “suspended by circumstances” as described on page 2 .
If the parent agrees that his or her rights have been “suspended by circumstances” and
agrees that a guardian needs to be appointed, the parent can either come to the court
hearing and tell the judge this or fill out and sign a PG-615 Parent’s Consent form.
If a parent agrees with the appointment of a guardian and is not able to attend the
hearing, you should get the consent form filled out and signed and filed with the court
before the hearing (or at the time of the hearing). You will need a separate Consent
form from each parent if both are living and their custodial rights have not been
terminated or suspended by court order.
Note: If the parent is under age 18, the parent will need to come to the court hearing
instead of signing the Parent’s Consent form.
You and the parent should fill out the form in full. Make sure the parent understands
the form and make sure the form is completely filled out before the parent signs it.
The parent will need to sign it in front of a notary public or court clerk.
Step 5.
Make a copy of the Petition, Custody Affidavit, Acceptance of Appointment, and
Parent’s Consent forms for yourself. Note: You will also need extra copies of the
Petition to send along with the notice of hearing described in Step 8 on the next page.
Step 6.
File the original Petition, Custody Affidavit, Acceptance of Appointment and Parent’s
Consent forms at the superior court filing location nearest to where the minor lives
(see list of court addresses on page 11 ), and pay the $75 filing fee.10 You can
deliver these documents to the court in person or mail them along with the filing fee.
If you cannot afford this fee, ask the clerk for form TF-920, Request for Exemption
from Payment of Fees. If you are petitioning for guardianship of more than one
minor at the same time, you only have to pay one filing fee even though you must file
a separate petition for each child.
If you change your address or phone number after you file the petition and before the
court hearing, be sure to notify the court.
10
Administrative Rule 9(b)(4)
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Probate Rule 15
AS 13.26.030 - .085
Step 7.
Scheduling of Court Hearing.
The court clerk will mail to you a Notice of Hearing telling you the time and place of
your hearing and the name of the judge or master who will preside.
Step 8.
Notifying Others About the Hearing.
As petitioner, it is your responsibility to notify certain other people about the hearing.
Do this as soon as possible after you receive the court’s Notice of Hearing.
a.
On page 1 of the attached Notice of Guardianship Hearing for Non-Indian
Child (PG-620), fill in the top of the form as you did on the Petition. Then fill
in the case number, the time and place of the hearing, the name of the judge or
master who will preside, and the court telephone number. (See list of
telephone numbers on page 11 .) Sign and date the form.
b.
On page 2 of the Notice form,
(1)
(2)
Check the box in front of each paragraph that applies.
•
Check the first box if the minor is age 14 or older. If the minor is
younger, do not check this box.
•
Check the second box.
•
Check the third and fourth boxes if the parents are living and have
not signed a “waiver of notice.”11 Note: The Parent’s Consent
form (PG-615) includes a place for the parent to state that he/she
does not want notice of the hearing. If the parent checks this box,
you do not have to send the parent notice of the hearing. Check
the box in the “mother” or “father” section on page 2 that says they
“waived notice.” Be sure to file the Parent’s Consent with the
court.
In the second, third and fourth paragraphs, fill in the names of any of
the following who have not signed a waiver of notice:
•
the person who had principal care and custody of the minor during
the 60 days before you filed the petition,
•
the minor’s mother, if living, and
•
the minor’s father, if living.
11
AS 13.06.115
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Probate Rule 15
AS 13.26.030 - .085
(3)
Check the boxes showing how the notice will be delivered to each
person (first class mail or hand-delivery) and the date of mailing or
hand-delivery. Fill in the name of the person who will do the handdelivery.
(4)
Sign the bottom of the page and fill in your address and telephone
number.
c.
Make copies of the Notice form and the Petition form and send a copy of both
to each person listed on page 2 of the Notice. You must do this at least 14
days before the hearing.12
d.
Proof That Notice Was Given. After the Notice has been sent to everyone,
you must file proof with the court that this has been done. Your proof is the
original Notice form with your completed certificate of service and your
original signature on page 2. File the original Notice with the court before or
at the time of the hearing. Keep a copy of the Notice for yourself.
If anyone has signed a written waiver of notice, file the original with the court
along with your original Notice.
Step 9.
Court Hearing.13
The hearing will probably be held from 30 to 90 days after you file your petition. The
hearing will be before a judge or master.
The minor has the right to be present at the hearing.
Usually these hearings are closed to the public.
The hearing will usually proceed as follows:
12
13
a.
The judge will identify everyone present (for the hearing record).
b.
If an attorney for the petitioner or the minor is present, the judge will ask the
attorney whether the case is contested or not.
c.
If the case is not contested, the judge may ask you questions about what you
state in your petition. The judge may also ask if anyone in the courtroom
objects to the appointment.
AS 13.06.110
AS 13.26.060
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AS 13.26.030 - .085
d.
e.
If the case is contested, the judge will ask what the dispute is. In a contested
case,
(1)
You may be required to testify under oath and/or call witnesses to
testify in support of your petition. You will have the burden of
proving what you have said in your petition.
(2)
The judge may have to postpone the hearing if it is going to take a
long time to hear all the necessary testimony.
(3)
The judge may order mediation under Probate Rule 4.5. (The court’s
order will state who the mediator will be, when mediation must begin
and how the costs of the mediation will be split between the parties.)
If the judge decides it is necessary to appoint a guardian, the judge may
appoint as guardian any adult whose appointment would be in the best
interests of the minor. Alaska statutes give a priority to adult family
members.14 "Adult family member" means a person who is 18 years of age or
older and who is (1) related to the child as the child's grandparent, aunt, uncle,
or sibling; or (2) the child's sibling's legal guardian or parent.15
The judge must appoint a person nominated by the minor, if the minor is 14
years of age or older, unless the judge finds the appointment contrary to the
best interests of the minor.
If necessary, the judge may appoint a temporary guardian for no more than six
months.16
f.
Step 10.
At any time during the proceeding, the judge can appoint an attorney to
represent the minor if the judge determines that the minor’s interests are or
may be inadequately represented.17
What Happens After a Guardian is Appointed.
a.
Letters of Guardianship
After appointing the guardian and after the guardian has filed a written
acceptance of the appointment (on form PG-630), the court will issue a
document called “Letters of Guardianship of a Minor” (form PG-635). The
guardian can get certified copies of this document from the court and use them if
14
AS 13.26.055
AS 47.10.990
16
AS 13.26.060(c)
17
AS 13.26.060(d)
15
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the guardian needs to prove to someone that he/she is the child’s guardian (for
example, schools, hospitals, government agencies, etc.)
b.
Annual Reports
Every year, for as long as the guardianship lasts, the guardian must file an
Annual Report on Guardianship of a Minor (PG-640) with the court. The
court’s appointment order will tell you the date the report is due each year.
c.
Change of Address
Any time the child or the guardian changes his/her address or telephone
number, the guardian must immediately send written notice to the court and
all parties in the guardianship case.18 You may use the PG-195 Notice of
Change of Address form. Include your case number whenever you write to
the court about your case.
d.
Requests to Change the Guardianship
At any time, the guardian, the child or any other interested party may ask the
court to remove the guardian and replace him/her with another guardian,
appoint a co-guardian, end the guardianship, or change the guardianship order.
You may use court form PG-190, Petition for Review of
Guardianship/Conservatorship, to ask the court to do this. Form PG-190 is
available at any state court and on the court system’s website:
www.courts.alaska.gov/forms.htm
e.
Termination of Guardianship
The guardianship will end when the child turns age 18 unless it is terminated
earlier by court order.19 A guardian cannot simply stop performing the
guardian’s duties without court permission before the child turns 18. If
something happens that leads the guardian to believe the guardianship should
end, the guardian must first file a request with the court. Form PG-190,
described in paragraph “d” above, can be used for this.
18
Probate Rule 14(c)
AS 13.26.075
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Probate Rule 15
AS 13.26.030 - .085
SUPERIOR COURT FILING LOCATIONS FOR GUARDIANSHIPS
ANCHORAGE:
Probate Office, 825 W. 4th Ave., Anchorage, AK 99501-2004
(264-0433)
BARROW:
Box 270, Barrow, AK 99723-0270
(852-4800)
BETHEL:
Box 130, Bethel, AK 99559-0130
(543-2298)
CORDOVA:
Box 898, Cordova, AK 99574-0898
(424-7312)
DILLINGHAM:
Box 909, Dillingham, AK 99576-0909
(842-5215)
FAIRBANKS:
Probate Dept., 101 Lacey Street, Fairbanks, AK 99701-4765
(452-9257)
GLENNALLEN:
Box 86, Glennallen, AK 99588-0086
(822-3405)
HOMER:
3670 Lake St., Suite 400, Homer, AK 99603-7686
(235-8171)
JUNEAU:
Box 114100, Juneau, AK 99811-4100
(463-4707)
KENAI:
125 Trading Bay Drive, Suite 100, Kenai, AK 99611-7717
(283-3110)
KETCHIKAN:
415 Main St., Rm 400, Ketchikan, AK 99901-6399
(225-3195)
KODIAK:
204 Mission Road, Rm 10, Kodiak, AK 99615-7312
(486-1600)
KOTZEBUE:
Box 317, Kotzebue, AK 99752-0317
(442-3208)
NAKNEK:
Box 229, Naknek, AK 99633-0229
(246-4240)
NOME:
Box 1110, Nome, AK 99762-1110
(443-5612)
PALMER:
435 S. Denali, Palmer, AK 99645-6437
(746-8181)
PETERSBURG:
Box 1009, Petersburg, AK 99833-1009
(772-3824)
SEWARD:
Box 1929, Seward, AK 99664-1929
(224-3077)
SITKA:
304 Lake St., Rm 203, Sitka, AK 99835-7759
(747-3291)
UNALASKA
Box 245, Unalaska, AK 99685-0245
(581-1379)
VALDEZ:
Box 127, Valdez, AK 99686-0127
(835-2266)
WRANGELL:
Box 869, Wrangell, AK 99929-0869
(874-2311)
If your nearest court is not on this list, check with that court to find out if a petition for
appointment of a guardian can be filed there.
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AS 13.26.030 - .085
Costs In Minor Guardianship Proceedings
Cost
Who Must Pay
Filing Fee
The petitioner must pay the $75 filing fee (unless the court waives
the fee because the petitioner is indigent).20
Attorney for Petitioner
The petitioner must pay the attorney if the petitioner hires an
attorney.
Attorney for Minor
If, at any time in the proceeding, the court determines that the
interests of the minor are or may be inadequately represented, the
court may appoint an attorney to represent the minor, giving
consideration to the preference of the minor if the minor is 14
years of age or older.21 The court will pay for the attorney.22
Attorney for Parents
If the court finds that the parents are not financially able to pay for
an attorney, the court can appoint an attorney to represent the
parents, and the court will pay for the attorney.23
20
Administrative Rule 9(b)(4) and (f)(1).
AS 13.26.060(d)
22
Administrative Rule 12(e)(1)(A)(ii)
23
Administrative Rule 12(e)(1)(A)(ii)
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Probate Rule 15
AS 13.26.030 - .085
Alaska Statute 13.26.070
Powers and Duties of Guardian of a Minor
A guardian of a minor has the powers and responsibilities of a parent who has not
been deprived of custody of a minor and unemancipated child, except that a
guardian is not legally obligated to provide from the guardian's own funds for the
ward and is not liable to third persons by reason of the parental relationship for
acts of the ward. In particular, and without qualifying the foregoing, a guardian:
(1)
must take reasonable care of the ward's personal effects and commence
protective proceedings if necessary to protect other property of the ward;
(2)
may receive money payable for the support of the ward to the ward's
parent, guardian or custodian under the terms of any statutory benefit or
insurance system, or any private contract, devise, trust, conservatorship or
custodianship; the guardian also may receive money or property of the
ward paid or delivered by virtue of AS 13.26.015 ; any sums so received
shall be applied to the ward's current needs for support, care and
education; the guardian must exercise due care to conserve any excess for
the ward's future needs unless a conservator has been appointed for the
estate of the ward, in which case excess shall be paid over at least annually
to the conservator; sums so received by the guardian may not be used for
compensation for the guardian's services except as approved by order of
court or as determined by a duly appointed conservator other than the
guardian; a guardian may institute proceedings to compel the performance
by any person of a duty to support the ward or to pay sums for the welfare
of the ward;
(3)
may facilitate the ward's education, social, or other activities and authorize
medical or other professional care, treatment, or advice; a guardian is not
liable by reason of this consent for injury to the ward resulting from the
negligence or acts of third persons unless it would have been illegal for a
parent to have consented; a guardian may consent to the marriage or
adoption of the ward;
(4)
must report the condition of the ward and of the ward's estate which has
been subject to the guardian's possession or control, as ordered by court on
petition of any person interested in the minor's welfare or as required by
court rule.
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